Gay marriage debate, mortgage fraud await attorney general

The to-do list for California's new attorney general is already 30,000 tasks long.

That is the number of cases open within the California Department of Justice – a sprawling docket of criminal prosecutions, civil litigation and technical legal questions that require official opinions.

In late returns, Steve Cooley, the Republican district attorney for Los Angeles County, was narrowly leading Kamala Harris, the Democratic district attorney for San Francisco. Cooley's position appears tenuous, however, as Harris has gained an 11 percentage point lead in Los Angeles County, Cooley's home turf, with 49 percent of precincts reporting.

[Update: Harris has gained a very slight lead of a third of a percentage point, 22,000 votes, with more than 99 percent of precincts reporting, according to the California Secretary of State's Office.]

Although the attorney general has tremendous power, much of the work of the office is done by a staff of 5,000, which includes 1,000 lawyers, all beholden to the law and not political whims. And the attorney general is often required to simply defend the actions and policies of other state agencies.

“I don’t know if people who are seeking the office always understand how limited their discretion is,” said James Humes, chief deputy to the California attorney general.

But those routine responsibilities aside, there are a handful of pressing matters where the winner's priorities might have an immediate impact. These include:

Gay marriage: To have any chance of survival, Proposition 8 – a ban on gay marriage that California voters approved in 2008 – needs someone to appeal a federal judge’s decision to strike down the initiative as unconstitutional. The defendants named in the lawsuit against the measure, current state Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, chose not to challenge the ruling.

Harris has said she also would decline to appeal, dealing the proposition yet another legal blow. Cooley said during the campaign that he would appeal the decision against Prop. 8. It is still unclear exactly how California’s new top lawyer would bring such an action.

“Some of the appeal periods have already lapsed,” Hume said, “but there may be some ability.”

Erwin Chemerinsky, dean of the law school at the University of California, Irvine, told the Los Angeles Times last month that the U.S. 9th Circuit Court of Appeals could still allow the California attorney general to intervene directly in the case.

Mortgage fraud: The California attorney general’s office has become a leader among the 50 states working in tandem to investigate and prosecute cases of deceptive practices by lenders.

However, this massive collaboration faces many logistical challenges, chief among them turnover of elected officials, as the Wall Street Journal reports. “One hurdle: Ten of the 12 state attorneys general on the foreclosure investigation's executive committee are running for re-election or will be leaving office in coming months.”

With Brown leaving the office, the new attorney general will decide to what extent the state’s lawyers continue in the investigation. The nationwide effort by attorneys general is very much in flux, with unanswered questions about the size of a potential settlement and whether to impose a freeze on foreclosures.

Capital punishment: The state’s attorney general defends the death penalty on two fronts. The office represents the people of California in upholding death sentences that are under appeal. And, as part of its duty to defend state agencies, the office represents the California Department of Corrections and Rehabilitation, which carries out the executions.

The death penalty became a central issue in the attorney general race as Cooley touted his unambiguous support for executions and criticized Harris’ personal objection to it. Los Angeles County under Cooley sent 13 men to Death Row in 2009 alone. On his campaign website, Cooley touted an LA Times editorial on the issue:

A recent report by the American Civil Liberties Union shows that Los Angeles County sent more people to death row last year than any other county in the U.S. — and more than the entire state of Texas. The trend is particularly odd given that most of the rest of the country is headed in the opposite direction. According to the Death Penalty Information Center, the number of death sentences nationwide last year was the lowest since capital punishment was reinstated in 1976.

The new attorney general will be responsible for making the legal case that California can competently execute its condemned prisoners. That task “has not changed under the past nine attorneys general,” Harris said last week during an event at the University of San Francisco. “It will not change under me.”

The state has been blocked by state and federal judges from completing an execution since 2006 over shortcomings in facilities and the lethal injection method. In September, the state Supreme Court halted efforts to execute convicted murderer Albert Greenwood Brown.

Comments

The citizens of California instituted the initiative process so that they might take matters into their own hands when they felt elected politicians wouldn't act in their interest. But that right of citizens to express their will through initiatives becomes effectively meaningless when, in the face of the inevitable lawsuits by opponents, the courts deem that only elected politicians have standing to defend the initiative and those politicians are then able to to simply choose not to defend a passed initiative. The worst criminal is entitled to a vigorous defense in our legal system. Yet that's not true for majority of the electorate when they are denied access to a legal defense of the laws they pass by very politicians the initiative system was designed to go above.
Providing for a fair defense in our adversarial legal system does not require that politicians defend initiatives themselves. Indeed it would be better for the integrity of the process that politicians recuse themselves or even oppose them if they feel strongly enough. But their role in the system, if it is to have any coherence, should require that that they assure that those initiatives have outside counsel that will provide for a genuine, vigorous defense.